Can you please help me figure out if I am subject to the 3-Year or 10-Year Bar?

Question: I am Russian citizen and I currently live in Russia. I intend to apply for a B1/B2 visa for a short business trip to the United States. I have a letter of invitation from our partner in the United States and a letter from my employer regarding the purpose of my travel, duration of the trip, and all other details regarding the trip as needed.

In 2005, I travelled to the United States on a J-1 visa. While in the United States, I changed my status to an F-1 and maintained my status throughout my studies and Optional Practical Training (OPT). During my OPT, I got married to a citizen of another country. My spouse was later granted asylum and I received asylum through him in March 2011.

In October 2011, with a Refugee Travel Document, I returned home and decided to stay due to problems with my husband. I have been in Russia for 4 years now, and I have never returned to the United States.

Now, I am applying for a B1 visa, but I believe I may have accumulated unlawful presence and may be subject to the 10-Year bar. This is because while waiting to receive asylum (through my husband), I had no legal status for nearly 13 months. I calculate this period from the date when my OPT ended (expiration of my Employment Authorization) to the date when my asylum application was granted.

Do you believe I may be subject to the 10-Year Bar? Also, I have read that there is a 60-day grace period that allows you to travel within the United States and prepare for your departure. Will I be able to take advantage of this time? It may be the difference between being inadmissible under the 3-Year Bar or the 10-Year Bar.

Answer: Thank you for your question. Without the benefit of reviewing your complete immigration history, I am unable to provide you with case specific advice. However, below is some information that you may find helpful.

It appears from your email that the issue is whether or not you accrued enough unlawful presence to subject you to either the 3-Year or 10-Year Bar. In fact, the specific time period in question is the period following the expiration of your OPT to the time that your husband submitted his bona fide asylum application.

Unlawful Presence (Three-Year/Ten-Year Bar)

A person who is unlawfully present in the United States, in certain circumstances, begins to accumulate what is called unlawful presence. A person who is in the United States for a period of more than 180 consecutive days but less than one year, who voluntarily departs the U.S. before commencement of proceedings, is barred from readmission for 3 years from the date of the person’s departure or removal. Furthermore, a person who has been unlawfully present in the United States for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person’s departure or removal from the U.S.

Pending Asylum Applications

Pursuant to immigration regulations, the filing of an asylum application stops the accrual of unlawful presence but does not eliminate prior unlawful presence. A derivative included in the application or a subsequently filed I-730 does not accrue unlawful presence from the date of filing. Finally, a grant of asylum does not eliminate any prior periods of unlawful presence. Therefore, if you accrued more than 180 days before filing a bona fide asylum application you will trigger the bar if you depart on a refugee travel document. Thus, you must determine the amount of time you were in the Unites States while out of status and when the asylum/derivative application was submitted.

60-Day Grace Period

Pursuant to (8 CFR §214.2(f)(5)(iv): “Preparation for departure. An F-1 student who has completed a course of study and any authorized practical training following completion of studies will be allowed an additional 60-day period to prepare for departure from the United States or to transfer in accordance with paragraph (f)(8) of this section."

Thus, if you did not (1) depart the U.S., (2) apply for a transfer to another SEVP-certified school, request a change of education level at the current school, or take steps to otherwise maintain legal status, you likely do not qualify for the grace period.

My suggestion would be that you make a FOIA request, so you can recreate an accurate chronology of your immigration history. I can assist you with that process. Furthermore, it appears that you may be subject to one of the bars, however, without specific dates, I am unable to state that conclusively. If after a complete review of your immigration history you are required to submit a waiver to overcome any unlawful presence, please call my office and I will be more than happy to discuss the nonimmigrant waiver application process with you. Thank you for your question and I look forward to speaking with you.